Waterboarding Puts Mukasey's Nomination in PerilBefore the Senate can vote to confirm Michael Mukasey, he needs a Democrat to join the GOP senators on the Judiciary Committee. But Democrats are concerned about his answers on waterboarding, enforcement of subpoenas and the president's powers.

From Hollywood to D.C., and the man who could be the next attorney general. At first, Michael Mukasey seemed to be heading towards easy confirmation in the U.S. Senate, but no more. Four of the Senate Judiciary Committee's 10 Democrats say they'll oppose Mukasey when they vote on his nomination next Tuesday.

The point of contention: an interrogation technique known as waterboarding and Mukasey's refusal to categorize it as torture. President Bush said yesterday it's not fair to demand that the former judge go on record about waterboarding when he hasn't been fully briefed on it.

President GEORGE W. BUSH: If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general. And that would guarantee that America would have no attorney general during this time of war.

COHEN: NPR congressional correspondent David Welna has been following the meltdown in Mukasey's support.

David, how much trouble does this nomination actually seemed to be in?

DAVID WELNA: Well, I'd say it's on a fair amount of trouble right now. If all 10 Democrats on the Judiciary Committee were to follow the lead of the four who've already said they'll vote against Mukasey, that would be enough to block his nomination, since there are only nine Republicans on the panel. But we don't know yet how several of those Democrats will vote on the nomination.

COHEN: And of course, one of those undecided Democrats is Senator Charles Schumer. And he's the man who actually recommended Mukasey in the first place, right?

WELNA: That's right, and I would not like to be in Schumer's shoes right now. After all, it was his enthusiastic endorsement of Mukasey that persuaded a lot of other Democrats to jump on the confirmation bandwagon at first.

But now that you have Democrats jumping off that bandwagon, the big question is whether Schumer will join them or possibly be the decisive swing vote that would give Mukasey a positive committee recommendation for confirmation by the full Senate.

Another big question mark is California's Dianne Feinstein, and that's because she broke with her fellow Democrats earlier this year and cast the decisive vote for another controversial nominee.

COHEN: And what about the Republicans? Do you think any of them might join up with the Democrats in opposing Mukasey?

WELNA: Well, possibly. The panel's top Republican, Arlen Specter, says he's still undecided, though he says he understands that Mukasey has said as much as he can on the topic of torture.

Another doubting Republican on the panel is South Carolina's Lindsey Graham, but he now says he'll vote for Mukasey, but he's urging him to publicly declare that waterboarding is torture if he does become attorney general.

COHEN: The Judiciary Committee's vote on this nomination is scheduled for Tuesday. What are the possible outcomes here?

WELNA: Well, the vote could actually be held over for another week if any panel member actually requests that, but assuming they do vote, if a majority favors his nomination, then it's a virtual certainty he'd be confirmed by the full Senate, though there could be an effort to block it on the Senate floor with a filibuster. We're not sure about that at this point.

If he's voted down in committee, it's still possible for a member to request that his nomination be sent to the full Senate with either a neutral or a negative recommendation. That would have to be approved by a majority of the members of the panel.

And Majority Leader Harry Reid says he won't use his right to hold a full Senate vote on the nomination unless it's been forwarded by the committee.

COHEN: David, I saw this headline last night. Bush says no AG other than Mukasey. Could that actually happen?

WELNA: Well, you know, as we heard him say just a few moments ago, he says that holding Mukasey to the standard of having to take a stand on a program that he hasn't been briefed on makes it hard for any nominee to be approved, though he did not say he would not offer another. But you know, this was really the first big nomination for which President Bush sought input from Senate Democrats.

And if they were to shoot this down, I doubt that you'd see any further attempts to find a consensus nominee, and that could leave the Justice Department without a strong leader. And that's something that both Democrats and Republicans don't want to happen.

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